Supporters Seek to Make Same-Sex Marriage the Letter of the Law

Hundreds of same-sex couples have gotten married in New Jersey since October, when a New Jersey court ruled that the state’s civil union law violated the New Jersey Constitution’s equal protection clause. But it is unclear when -- or if -- the state Legislature will codify the lower-court ruling that set those marriages in motion.

Because marriage rights were conferred by Mercer County Superior Court Judge Mary Jacobson and not the state Supreme Court, there are concerns that the ruling could be vulnerable down the road should federal law change or Gov. Chris Christie be successful in remaking the state’s high court.

Advocates for marriage equality, however, are making it clear that they want a clean bill -- meaning one that does not create new exemptions for those who are not supportive of gay marriage. For instance, they are concerned that a bill could be compromised by making exceptions for religiously affiliated groups.

Garden State Equality, one of the plaintiffs in the litigation that resulted in Jacobsen’s ruling, together with the Lambda Legal Defense Fund, which represented the couples in the case, pushed state Sens. Loretta Weinberg (D-Bergen) and Raymond Lesniak (D- Union) to pull legislation -- S-3109 -- from consideration on Monday. The bill, which essentially updated legislation vetoed in 2012 by Gov. Chris Christie, would have codified Jacobson’s ruling and allowed existing civil unions to become marriages, while also creating a broad exemption for religious groups.

Those exemptions, advocates worry, could have opened the door for entities that serve the general public but are owned by religious organizations, such as wedding halls, to discriminate against lesbian and gay couples by denying them service.

“Religious beliefs already are covered under the First Amendment,” GSE President Troy Stevenson said Tuesday. “The advocates, in general, do not believe that we should be caveating rights of LGBT couples more than we do any other couples.”

Jacobson ruled on September 27 that the U.S. Supreme Court’s decision to overturn a key element of the federal Defense of Marriage Act and force the federal government to recognize same-sex marriages for the purpose of federal benefits meant that New Jersey's civil-unions law violated the state constitution's equal-protection clause. Christie initially appealed, but dropped the effort after a unanimous state Supreme Court refused the governor’s request for a stay and sharply criticized the governor’s argument against marriage equality.

Unanswered Questions

That meant same-sex marriages could go forward, though Weinberg said Tuesday that it left several questions unanswered: How should existing civil unions be handled? Should New Jersey recognize marriages from other states? Should there be rules in place governing religiously owned public accommodations?

S3109 was an effort to answer those questions, Weinberg said. It was scheduled for a Senate Judiciary Committee hearing on Monday, but after Garden State Equality, Lambda Legal, and others in the activist community raised concerns, she pulled it from the schedule.

“We are not under a cudgel that this needs to be done in two or three weeks,” she said. “I thought it was appropriate, but they thought the legal questions were larger and I respect their understanding of constitutional law.”

Hayley Gorenberg, deputy legal director for Lambda Legal, said there is a need for clarification of some details, but not in the religious sphere.

“The First Amendment reigns supreme,” she said Tuesday. “Clergy people get to decide who they marry and who they wish to solemnize or not solemnize, depending on whatever their religious tenets are.”

Her concern, she said, is that any codifying legislation not endanger public accommodation rules. Groups like the Roman Catholic Knights of Columbus, for instance, can restrict rental of their facilities to members of the organization or to members of an affiliated parish. But once they open their doors to the larger community, they cannot discriminate even if that means renting a hall to a same-sex couple.